Disqualification Discussion: Amicus Blocked, Waiver Waived

5th Circuit Strikes Gibson Dunn’s Pro-Obamacare Brief for Recusal Issue” —

  • “A federal appeals court on Monday blocked the law firm Gibson, Dunn & Crutcher from filing a pro-Obamacare amicus brief because the submission would have caused the disqualification of an unidentified judge.”

  • “The U.S. Court of Appeals for the Fifth Circuit’s order pointed to a newly amended federal rule for appellate litigation and to a local court rule, both of which address circumstances where a court can reject an amicus brief if allowing it would force a judge to recuse.”

  • “Former Gibson Dunn partner James Ho was confirmed in 2017 to a seat on the Fifth Circuit… firm. Ho’s wife, Allyson Ho, is a Gibson Dunn partner in Dallas.”

  • “James Ho, who’d been a Gibson Dunn appellate partner continually since 2010, said in a U.S. Senate questionnaire at the time of his confirmation: ‘For a period of time, I anticipate recusing in all cases where my current firm, Gibson, Dunn & Crutcher, represents a party.’ He also said he would recuse in any case where his wife represents a side and that he would ‘evaluate any other real or potential conflict, or relationship, that could give rise to appearance of conflict.'”

  • “An amendment to the federal rules of appellate procedure that took effect in December 2018 said ‘a court of appeals may prohibit the filing of or may strike an amicus brief that would result in a judge’s disqualification.’ Several appellate courts had adopted local rules forbidding the filing of an amicus brief that could cause the recusal of one or more judge, and the new federal rule harmonized how courts were handling amicus briefs and recusals. There was some opposition to the proposed rule, including the argument that amicus-based recusals are rare and the fact that the rule could ‘prove wasteful if an amicus curiae pays an attorney to write a brief which the court then strikes.'”

Developer On Hook For $5.2M Despite Atty DQ, 8th Circ. Says” —

  • “A law firm that previously represented a historic Iowa building’s owner should have been disqualified from representing a bank suing the developer over lease payments, but the owner still must face a $5.2 million judgment despite the conflict of interest, the Eighth Circuit ruled Thursday.”

  • “Winthrop had represented Mako in 2011 and 2012 on a $6 million tax credit bond offering related to a $17 million restoration project for Badgerow. But U.S. District Judge Leonard T. Strand said the law firm’s representation of CRBT in the present case was acceptable because of a conflict of interest waiver signed by both the bank and Mako.”

  • “The appeals panel disagreed. Finding that the waiver — inked years before the litigation — was not signed by Mako with ‘informed consent,’ the panel said it did not lay out the ‘advantages, disadvantages, risks or benefits’ Mako would face by allowing Winthrop to serve as counsel for CRBT. But despite the insufficient waiver, Mako was not adversely affected by Winthrop’s representation of CRBT, the appeals court said, citing First Circuit precedent.”

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